Not that the arguments aren’t self-defeating or are a departure from reality, but those are among a number of arguments being made for a blanket ban on circumvention. The op-ed was posted on the Straight and does a pretty good job at listing off the myths surrounding piracy and TPMs. We felt it was necessary that there would be a response to these arguments.

“Internet piracy of video-game software in Canada has undergone explosive growth,” Parr writes, “and we detected a stunning 300 percent increase in the number of games illegally downloaded via Canadian ISPs between 2007 and 2008 (and this reflects but a fraction of the total illegal downloads in Canada detected by the industry as a whole).”

Either this point is completely untrue and made up, or the industry’s method of gathering information is severely flawed. ISPs have admitted to the CRTC that the bandwidth growth, particularly in the span of 2008 and 2009, fell by 45%. If piracy, even gaming piracy, grew by a “stunning 300 percent”, you would think that bandwidth growth would increase, not decrease. So who would you believe? The ESA who “detects” piracy, or the ISPs who can actually see the network bandwidth themselves?

“Today,” Parr continues, “it costs between $10 and $30 million to develop a top-tier video game, and few games actually sell enough to achieve profitability. In light of the substantial investment required and the high degree of risk associated with the production of entertainment software, piracy fundamentally undermines the industry’s ability to recover its investment, resulting in fewer games as well as lost revenue and employment opportunities.”

Yet, in the same breath, Parr wrote just two paragraphs earlier, “The video-game industry is the fastest-growing sector of the entertainment industry in Canada, and one of the most vibrant, fastest-growing industries in the world. [...] Canada recently overtook the United Kingdom to become the third most successful producer of video games in the world.”

Amazingly, he still takes that argument to say, “new copyright legislation must provide legal protection for TPMs, prohibit trafficking in “mod chips” and other circumvention devices and services”

In other words, the industry is growing at an amazing rate (without anti-circumvention legislation) but piracy exists, so anti-circumvention law is required. If Canada is growing to be a world leader, overtaking other countries including those that have anti-circumvention legislation, doesn’t that render the argument that there needs to be anti-circumvention legislation null? If the gaming industry has been growing spectacularly well, why is there suddenly this need for anti-circumvention legislation in the first place?

Parr also argues, “implementing legal protections for TPMs will benefit consumers by providing greater certainty in the digital marketplace, which will, in turn, spur investment in the development of new digital products, services, and distribution methods; more consumer choice; and lower prices”

Question, how often does a hardcore gamer say, “Gee, I’d love to buy this video game, but I’m not sure I want to because I am uncertain about the overall game marketplace.”? Maybe what Parr meant to say was, “implementing legal protections for TPMs will benefit stock investors by providing greater certainty in a digital marketplace”. After all, it seems much more reasonable to hear a hardcore gamer say, “Boy, I’d love to play more games.”

Furthermore, TPMs have proven in every other digital authorized marketplace to enforce monopolies and put a further squeeze on competition and consumer choice. A modded console has been known to expand the functionality of a gaming console in ways that weren’t originally part of the console – allowing developers to create applications and find new innovative ways to use a game console. Conveniently enough, that wasn’t mentioned in the op-ed. If you want a recent example on how TPMs block innovation, you could do a whole lot worse than to read up on the RealDVD case or the DVD Jukebox case.

“If a creator or company chooses to sell their work as a digital product or service, legal protection for TPMs helps ensure that this choice is respected, much in the same way that locks on the doors of a bricks-and-mortar store allow the owners to determine when and how consumers can access their product.” Parr wrote.

It’s a flawed comparison to compare owning a product to a physical store. If one were to pay for that store, why should someone else add further restrictions on what one can do with that store even though it was legally bought and paid for? If one were to use the bricks and mortar allusion, the more realistic comparison is that if you were to buy a building and you are now the legal property owner of that building. Then, the person who sold that building said, “OK, now that you own this building, you are only allowed to have the store open every 10 minutes on the hour and you can only sell merchandise to people with shaved heads or people who have been to a Rolling Stones concert and a Linkin Park concert within the span of three weeks.” This is not a reasonable demand on the sellers part. You paid for the building under the premise that you bought it outright, it should be yours. Who’s to say you are going to turn it into a store and not a gym? When you pay for content with digital locks, you rent it, you don’t buy it.

Parr comment that has earned a lot of counterarguments was this: “Failing to protect TPMs under the law effectively means that the government is dictating the business model, which is bad news for business and for consumers.”

The government is certainly not dictating any business model by not introducing blanket anti-circumvention legislation. If a company wants to implement DRM, and one company did in 2005 with rootkit and spyware technology (and they were sued for it in the end), they are free to do so in Canada. Not implementing anti-circumvention technology is not saying, “All copy protection is banned in Canada” by any stretch of the imagination. However, many do see anti-circumvention legislation as effectively dictating how the market can legally operate.

All in all, while an OK attempt to justify anti-circumvention legislation, like all other arguments that we have seen so far that are for restricting copyright, the arguments are either a departure from reality, philosophically incorrect or simply relying on myths and unverifiable information.

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The CFHSS has issued a call to action on the copyright consultation.

“Representing as it does scholars who cherish and produce copyrighted works,” the CFHSS says, “the Canadian Federation of Social Sciences and Humanities certainly supports efforts to reduce the commercial‐scale piracy. However, we call for a law that balances the economic rights of creators and/or owners with society’s right to gain access to knowledge. Access to knowledge is a crucial stage in the life cycle of new creativity and innovation. The rights of scholars, students, universities, libraries, taxpayers and consumers must be preserved in order that this cycle can continue to generate novelty, critique, meaning, and collective cultural experience. Scholars in the humanities and social sciences work primarily with human creations, human ideas and human interaction – much of which falls under copyright. Our work in turn, once fixed in print or other media and shared with the academic community and the public at large, falls under copyright. Copyright thus to a large extent determines the conditions of possibility for our research and knowledge sharing. Many legislative amendments proposed and even introduced over the past several years would severely impede the ability of scholars to carry out their work, and the ability of Canadians to share with and learn from one another: we must be wary, creative, and outspoken about the next stages of copyright reform.”

Right here, the CFHSS makes a very important and critical distinction here. Very few, if any, support commercial piracy. Taking content, burning hundreds of copies and selling it on the street is something that will not lend you very much sympathy both from the industry and file-sharers alike. That doesn’t mean Technical Protection Measures (TPMs) or digital locks, as they have seemingly become most commonly known as in Canada, should somehow trump all forms of fair dealings. Commenting, critiquing and parody are among one of the most effective means of spreading culture around – something that benefits content creators, both who are getting critiqued and by creators who are doing the critiquing. Exceptions to copyright law that allow society to respond to creative works greatly enriches society as well as the original creative works.

CFHSS also comments, “It has been said that digital technologies create a necessity for greater protection for rights‐owners in order that the economic effects of the tech sector can be maximized. In our view, it is short‐sighted and narrow‐minded to think of new rights for creators or publishers as the only way to increase activity in the cultural and cyber industries.”

There is little doubting the kind of opportunities new technology has provided. The internet has helped connect artists to their fans in ways that was unheard of before. In fact, one musician has already commented how file-sharing has become a very valuable learning tool for artists. Now, artists are able to go through different genre’s of music and learn about what is out there to enrich their own creative pallets. There are even the odd person here and there now that would go so far as to say p2p is creating content creators. On a personal note, I should know as I am one of those people.

In short, here are the core arguments CFHSS are making:

1. Make the concept of fair dealing more clear and flexible to encompass the reality of teaching, learning and research in the context of digital technology by integrating the Supreme Court’s tests for fair dealing from CCH v. LSUC (2004) into the Copyright Act.

2. Forbid the circumvention of digital locks (DRM) only if the locks are broken for infringing purposes.

3. Avoid specific exceptions, such as those in C‐61 for digital interlibrary loan and educational use of the internet: fair dealing already covers many educational uses, and specific exceptions are often entirely
unworkable.

4. Work towards format neutrality in the Act, so that various media are treated in an equivelent way.

5. Add a provision that contract law may not trump fair dealing.

6. Refrain from lengthening copyright term.

7. Make provision for more practical access to orphan works

8. Eliminate crown copyright.

Already, the DOC has called to expand fair dealings for people who make documentaries.

Currently, a lot of this seems to coincide with what many are already submitting to the copyright consultation. Michael Geists latest update shows that the submission trends are continuing.

According to updated numbers, there are now 465 submissions against anti-circumvention or in favour of limiting DRM/Digital locks, 431 submissions in favour of stronger personal use/copying and backup protections, 400 submissions against another Bill C-61, 389 submissions that favour a “notice and notice” approach and 388 submissions in favour of establish a good-faith defence that the user believed their use of a work was fair and non-infringing. On the other side of the debate, there are 2 submissions in favour of stronger penalties for copyright infringement, 2 submissions in favour of implementing WIPO, 1 submission in favour of limiting file sharing, 44 submissions against works being available in digital or other forms for free and 1 submission in favour of turning copyright into a crime. With supporters of loosening copyright laws ranging between 10 times to about 400 times the submissions that ask for restricting copyright, the chances of successfully arguing that most Canadians want to follow positions expressed by the pro-copyright restricting camp, who have argued for a three strikes law, has grown increasingly bleak.

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A member of the Pirate Party of Canada has written in to inform us that the Canadian Pirate Party has recently undergone a makeover of the original website. It even has a brand new domain at PirateParty.ca.

Already, back on July 2nd, just a little over a month ago, we reported on the formation of the party as it looked for members to help spread the word of the party. Just days later, after getting major recognition online, it caught the attention of the Green Party of Canada who commented that the Pirate Party of Canada was not necessary given that Canada has the Green Party. Members of the Pirate Party responded saying that, among other things, this is an excellent sign for the Pirate Party for getting such recognition.

The new website is a far cry from the old website as it no longer has just a row of links and a logo on the home page. There’s a blog, a more integrated navigation bar and, interestingly enough, a picture of a pirate ship that seems to resemble the former logo of ThePirateBay.

The Canadian Pirate Party is still seeking more membership. Their goal is to become the first Pirate Party outside of Europe to have a formally registered political party. As of this writing, the membership is currently just shy of 30% of the needed signatures to become a formally registered party. It will be interesting how well the party spreads its word online as well as how membership will rise now that a Fall session of classes are coming up in the coming weeks in Canada given that the traditional age group for people voting for the Pirate Party has been around the 18-30 years of age. There’s plenty of opportunity for growth given that the Canadian mainstream parties seem to have still been trying to grasp the full potential of the internet to garner support in Canada.

What also bodes well for the user rights movement in general is that there’s the additional momentum of the Pirate Party. If, after the Copyright consultation, the government somehow decides, against the will of Canada, to table another Bill C-61 with three strikes and a restriction of Fair Dealings, for example, there’ll be increased motivation to vote for the Pirate Party.

Certainly interesting times for the party. It further highlights the growing movement of the party given that just yesterday, the UK Pirate Party, became formally registered as a political party.

Pirate Party homepage
Pirate Party member signup page

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The copyright debate is currently still in overdrive right now. Many who have tried to characterize the copyright debate as little more than a bunch of networked users versus big content have been almost entirely from the minority voice who wants to restrict copyright in Canada. In reality, the copyright debate spans much farther than just two kinds of people. It’s a total fabrication that the copyright debate is just a simple little issue that needs little attention.

In fact, in some respects, the issues surrounding file-sharing in the copyright debate have almost taken a side-seat for larger issues such as digital locks and fair dealings. This theme backs up earlier evidence that Canada is a country that pays for consumed content. If it was a piracy haven where everyone was just downloading copyrighted works, the digital locks issue would barely surface in the debates since people who download rarely, if ever, have to worry about encountering a digital lock.

The issue of fair dealings has been nearly a broken record had the need for “balance” in the copyright laws haven’t been such a dominant theme already. Fair dealings is an issue for most people who are interested in creating content in the first place. A chairwoman for the Writers Union of Canada wasn’t exactly supportive of expanding fair dealings and said how university faculty are on salary while contract writers were not. If one were to presume this was the only real part of the debate, they’d be greatly mistaken as there are several forms of other fair dealings as well – well beyond just writing.

The DOC has informed ZeroPaid that it supports expanding fair dealings for people who create documentary films. Here’s their position on the copyright reform debate:

DOC leads the charge on documentarians’ position to avail themselves of a Fair Dealing exclusion for their productions and to that end, works in tandem with the academic, legal and production communities to publicize this information.

While the issue of fair dealings with respect to documentarian’s for some might be vague and distant to some, in 2006, the issue of copyright as it relates to documentarian’s was a huge issue. The flash point controversy was Death By Popcorn where corporate owners used copyright to halt the production of that documentary surrounding a hockey team. It brought the harsh reality of copyright for documentarian’s right into the forefront of the public conscious.

“We are storytellers.” SUZANNE CHISHOLM, director of Saving Luna commented. She continued, “We believe in the power of narrative nonfiction storytelling to reach human emotions and explore the experience of life on this planet. We believe there is intrinsic value to society and to other lives in telling stories that try to describe things that matter with accuracy and honesty. Some documentary filmmakers want to use their work as advocates, to change what people do; we want to use our work as empathetic storytellers, to understand what people do.”

Given that award-winning documentaries are produced in Canada, it’s almost a travesty to see how many hurdles producers have to go through – and copyright is one of those big hurdles with such a tight fair dealings exemption in copyright while their American counterparts enjoy a much broader “Fair Use” exemption. One could argue it’s an unfair advantage in a way.

With the DOC, and their 800 members, arguing for an expansion of Fair Dealings, it drives the point home that there are many content creators seeking a loosened copyright law in some form or another to make it easier to make content in the first place. As Lawrence Lessig once said, innovation always builds on the past. The tighter copyright laws are, the harder it is to make content such as documentaries as they often end up incorporating other peoples works – inadvertently (i.e. on someones shirt) or otherwise.

Some might argue that tighter copyright laws will save jobs and help the economy. It’s a somewhat amusing claim given that the DOC “outputted $440 million in 2005-2006 (latest available figures) and generated over 15,000 direct and indirect jobs in Canada”. An entity pulling in so much for the Canadian economy is asking for a fair dealings exemption – loosening copyright laws for the purpose of creating content.

The copyright debate has already had its dramatic twists and turns. A couple have argued for keeping fair dealings the way they are. Many, now including the DOC, are either directly or indirectly firing back asking for a loosening in the copyright law – in this case, expanding fair dealings for the purpose of documentaries. Who knew there were more players in the copyright debate than consumers and the big four foreign record companies and the foreign owned movie industry?

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It’s becoming one of the fastest ways to isolate oneself in the copyright debate. All you have to say is that you are for suing internet users, for a blanket ban on digital lock circumvention and for restricting fair dealings. While one may get a sympathetic ear or two, a vast majority of stakeholders will not share that viewpoint. In fact, there a few stakeholders looking at the US style copyright law and merely looking at fair use as a way of expanding fair dealings (fair use is actually broader than fair dealings currently).

Comments made by the Manitoba Music Industry Association drew particular interest at a recent Saskatchewan copyright round table. The comments are available in MP3 format and can be heard at around the 50 minute mark. While advocating alternative business models and obtaining new streams of revenue, the MMIA argues, “We find ourselves in the Manitoba music industry more aligned with some of the creators coalitions and independent music groups and less aligned with CRIA and the RIAA. Our members are generally speaking are not interested in anti-circumvention laws, they are not interested in suing fans. No one from our membership is going to go out and sue fans because they copied some of their music. What they are interested in is finding ways of monetizing the creative content.” (Hat tip Michael Geist for transcript excerpt)

This isn’t the first time entities in Canadian music have stepped away from the CRIA stance of anti-circumvention laws and suing music fans. In response to the lobbying power of the CRIA which pushed the government to have file-sharing lawsuits be brought into Canada (of which CRIA still suggests that they want to easily file lawsuits against alleged copyright infringers on their Free Music Myths page – 4th myth from the bottom, first paragraph) and to introduce anti-circumvention legislation, Canadian record labels and artists broke away from CRIA. Some of those that broke away formed the Canadian Music Creators Coalition which formed to defy the CRIA stance on file-sharing lawsuits and DRM in 2006. As a result, CRIA lost a vast majority of its credibility as it was since seen as little more than a foreign organization with the word “Canadian” in its name.

That was long before Jamie Thomas was fined $1.92 Million for sharing 24 songs and Joel Tenenbaums $675,000 fine for sharing 30 songs. If anything else, those fines, particularly the Thomas fine, has only served to horrify Canadians and cement the need to distinguish between commercial and non-commercial uses or to flat-out reject file-sharing lawsuits altogether.

Up to now, there’s a long-running theme of disallowing a blanket anti-circumvention legislation, being very cautious around file-sharing lawsuits, finding alternative streams of revenue and pushing for (at this point, it’s a cliche in the consultation) a balanced approach for copyright legislation. The push to tighten copyright laws has primarily come from organizations who are mostly influenced by foreign interests or are organizations that operate on behalf of foreign interests. The push against this viewpoint has come mainly from Canadians, Canadian businesses, Canadian content creators and organizations that are primarily Canadian. In terms of public opinion, the CRIA stance has further disintegrated in the copyright consultation.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.